DISSENTING OPINION OF JUDGES O’LEARY AND BÅRDSEN

1. We respectfully disagree with our colleagues that there has been a violation of the procedural aspect of Article 2 of the Convention. There is no real disagreement regarding the relevant general principles. We also agree that the authorities were under an obligation to carry out an effective investigation of the circumstances surrounding the death of the applicant’s husband M.M (see paragraphs 38-38 of the current judgment). However, we have a different view on the concrete assessment of the effectiveness of the investigation and what in practice those principles require of domestic authorities in a case such as this.

2. The investigation of the applicant’s husband’s suicide was closed on account of the prosecutor’s conclusion that no crime had been committed. When assessing whether this conclusion and the investigation that led to it were in compliance with the procedural requirements under Article 2 of the Convention, we recall that these requirements are obligations of means, not of results. Accordingly, the closing of the investigation without any charges having been brought, with certain potentially decisive questions being unanswered and without any conclusion as to the actual cause of the suicide of M.M., is not determinative (compare paragraph 43 in the current judgment). The question is whether the authorities took reasonable measures enabling them to secure evidence, whether they based their conclusions on a thorough, objective and impartial analysis of all relevant elements and, moreover, whether all obvious lines of inquiry were followed ( Mustafa Tunç and Fecire Tunç , cited above, §§ 173-81). We also recall that the effectiveness of any investigation must be assessed with due regard to the practical realities and limitations of investigation work and in accordance with the principle of subsidiarity.

3. We firstly note – virtually in concert with the majority – that the institutional link between the police under investigation and the General Inspectorate of the Ministry of the Interior who was responsible during the first two months of the investigation, didn’t imply per se that the initial face of the investigation was not sufficiently independent (see paragraphs 40-41 of the current judgment). This aspect of the case is important, as it means that, although the handing over of the investigation to the prosecutor’s office in line with a recently adopted ministerial order was unfortunately somewhat delayed, the investigative measures taken prior to that handover were not all automatically vitiated on the grounds of lack of independence. Moreover, an investigation was indeed opened ex officio already on the day of the suicide, and a number of investigative measures were carried out before 11 November 2014, when the applicant and her lawyer were also given access to the case file (see paragraphs 11-25 of the current judgment).

4. Secondly, we find that the evaluation of the effectiveness of the subsequent inquiry by the prosecutor, and the basis for her decision to close the investigation, will have to take into account the fact that, crucially, the applicant herself changed her statement – which had constituted the very basis for her initial allegations against the police – in the course of the criminal proceedings. Her statements related to key questions the subject of the investigation, notably whether there was evidence confirming that M.M. had told others about the alleged ill-treatment at the police station. In her first statement on 8 July 2013 the applicant had explained to the police investigator that her husband had himself told her that he had been subjected to verbal and physical abuse by police officers in order to force him into giving a statement incriminating his friend G.M. In her subsequent statement of 25 October 2013 given to the prosecutor in the presence of a lawyer, she explained, however, that her husband had not alleged such ill-treatment and that she had only heard about physical ill-treatment from her husband’s colleagues (see paragraph 13 of the current judgment).

5. Thirdly, in her decision of 25 March 2016 to close the investigation, the prosecutor noted that the evidence available had not demonstrated that any irregular or excessive pressure had been used against M.M during his questioning as a witness by the police on 5 July 2013, the day before he killed himself. This conclusion relied, among many other elements, on G.M.’s statements indicating that he had not witnessed the applicant’s husband being ill-treated (see paragraph 26 of the current judgment). It is true that G.M. also stated that M.M., while at the police station the evening before his suicide, for approximately 40 minutes had been taken out of the open-space office where the interview of him had started. G.M. was, however, unaware of what had happened during that time, and he had seen no signs that M.M. had been ill-treated (see paragraphs 12 and 17 of the judgment), a fact endorsed by the results of private and State forensic examinations. In contrast, the police officers in charge explained to the investigators from the General Inspectorate of the Ministry that M.M. stayed in the open-space office throughout the whole period of his presence at the police station (see paragraph 18 of the judgment). We are mindful that these police officers were not interviewed anew after the public prosecutor took over the investigation. However, nothing in the file suggests that there were realistic indications that re ‑ interviewing the policemen would bring forward anything new and of importance to the investigation, or that the investigation otherwise failed to follow an obvious line of inquiry which would have undermined to a decisive extent its ability to establish the circumstances of the case.

6. Fourthly, we note that the investigation was opened on 6 July 2013 and was closed on 25 March 2016 – a period of slightly more than two years and eight months. This period is not, even if an apparent stillstand for more than a year is regrettable, in and of itself and in the context of this particular case, a problem under Article 2.

7. Finally, while the applicant was unable, on account of not having been granted the procedural status of a victim, to appeal against the decision of the prosecutor’s office (see paragraphs 27-28 of the current judgment), it does not appear that she had ever applied for such a status as she was able to do under domestic law. She was given, however, the opportunity to consult the investigative material on one occasion (see paragraph 24 of the current judgment), and she did not explicitly complain to the Court about any inability to effectively participate in the proceedings. Accordingly, the investigation did not fail to sufficiently ensure the safeguarding of the legitimate interests of M.M.’s next-of-kin (see the above-cited cases of Mustafa Tunç and Fecire Tunç , §§ 214-15 and Nicolae Virgiliu Tănase v. Romania, § 181).

8. Given the general CPT material referred to by the majority (see paragraph 32 of the current judgment), we consider, like our colleagues, that considerable care is required when investigating allegations under the procedural limb of Article 2 of the Convention against such a background. The fact remains, however, that the Court is required to engage in a concrete assessment of the case before it and that the Convention requirement is one of means and not results. Our role is not to micromanage criminal investigations or substitute our assessment for that of the domestic authorities unless there are sufficient elements at our disposal to point in that direction. General concerns about impunity or conjecture about what pressure a deceased may have felt when providing evidence against a friend do not suffice to found a violation of Article 2 when the elements in the file point to a prompt police response and sufficiently thorough examination of relevant lines of inquiry. There is a significant disconnect between the investigative measures outlined in paragraphs 11 to 26 of the judgment and the majority’s engagement with them.

9. It is in the light of the above that we cannot agree with our colleagues that the authority’s examination of the circumstances surrounding the applicant’s husband’s suicide failed to meet the requirements of the procedural aspect of Article 2 of the Convention. Accordingly, we voted against finding a violation in this case.